Parched state rethinks water rights

May 23, 2015

Crystal Geyser Water Co.’s attempt to open a bottling plant this fall near Mount Shasta has infuriated that community’s residents and revealed gaps in California laws allocating our most important resource — water. The gaps raise questions of fairness and whether the state is acting in the public trust in overseeing the use of water that belongs to all Californians.

The drought and the governor’s historic mandate to cut water use by 25 percent has heated up debate over water rights and if the state is, as constitutionally required, ensuring our water is put “to a reasonable and beneficial use.”

As the drought has deepened, protests over bottling and selling water have sprung up in Mount Shasta (Siskiyou County) and other cities around the state. A large banner at a recent protest in Sacramento read: “Nestle, 515,000 people say leave California’s precious water in the ground.” Hundreds of protesters congregated Wednesday at the Nestle bottling operation in Los Angeles. While the Nestle CEO said he plans to expand his operations in the state, Starbucks recently decamped for Pennsylvania — a state with its own water concerns — on ethical grounds over bottling water in a drought-stricken state.

The concerns in Mount Shasta are local: Much of the community relies on well water and fear their wells will go dry if Crystal Geyser taps into Big Springs, the headwaters of the Sacramento River, to pump as much as 365,000 gallons a day. Property owners have limited legal recourse if they lose their water and their property is devalued because of how the state manages groundwater use.

The Mount Shasta community’s worries are also part of statewide legal concerns: Until last year, the state’s groundwater laws reflected our Gold Rush heritage. Essentially, like gold claims, he who claimed the water first, got the water rights. Whereas other states treat water as a shared resource, California treated water as a property right. As part of a package of drought-related reforms, the Legislature passed and the governor signed the Sustainable Groundwater Act of 2014, making California the last Western state to adopt laws managing its most valuable but scarce public resource.

The act requires each of the 127 identified water basins or sub-basins to develop water management plans that will attempt to avoid overdraft, allocate the water fairly and punish overuse. However, it doesn’t go into effect until 2020 or in some cases 2022. And, for the community of Mount Shasta and residents of the other mountainous regions of the state — the Coastal Range, the Sierra Nevada, the San Gabriel Mountains — the law doesn’t provide state oversight. Blame the hydro-geology.

Most of the groundwater pumping in the state occurs in the Central Valley, where farms and cities use groundwater to supplement rainfall in dry years and as water storage in wet years. A water basin is like a bowl of sand. The water percolates through the porous sand and pools above the denser clay. It’s relatively easy to monitor water supply: When the water level goes down, wells must go deeper. Water managers can measure, and thus manage, water use.

Mount Shasta the city sits at the base of Mount Shasta, the active volcano. The ground there is crisscrossed with lava tubes running through uplifted and cracked rock known as fractured rock zones. It is difficult and costly to determine if the groundwater is coming from directly below the surface or from some source miles away. In these zones, the state does not require permits or use reports, leaving jurisdiction to Siskiyou County, which has declined to require environmental review of the Crystal Geyser project.

Politically, the Crystal Geyser project is fraught. The governor has required us to share the pain of drought-imposed cutbacks, but, regrettably, has stepped back from oversight of how our most valuable resource is allocated.

Ground rules

How the law applies to groundwater rights in California depends on what type of ground the water is found in.

Percolating groundwater — precipitation that travels through surface substrate and pools in an aquifer: No rules, no state oversight, no limits on pumping. Little monitoring of what is extracted. No environmental impact report required for use.

Subterranean streams — water flowing through a known underground channel and connected to surface water: Diversion requires a state permit and environmental study.

Fractured rock zones — volcanic areas where water travels through cracks in the rocks: No rules, no state oversight, no limits.